BNUMBER:  B-275047
DATE:  January 21, 1997
TITLE:  Dyna Construction, Inc.

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Matter of:Dyna Construction, Inc.

File:     B-275047

Date:January 21, 1997

Theodore M. Bailey, Esq., for the protester.
Lee Casstevens, Esq., Wood, Burney, Cohn & Viles for Braselton 
Construction Co., an intervenor.
Diane D. Hayden, Esq., Department of the Navy, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency properly rejected as nonresponsive protester's bid which failed 
to acknowledge an amendment that added an additional material 
requirement.

DECISION

Dyna Construction, Inc. protests the rejection of its bid and the 
award of a contract to Braselton Construction Company under invitation 
for bids (IFB) No. N62467-96-B-7664, issued by the Department of the 
Navy for construction services to repair/upgrade the quarters used to 
house enlisted sailors at the Naval Air Station in Kingsville, Texas.  
Dyna's bid was rejected as nonresponsive because the protester failed 
to acknowledge amendment No. 0002 to the IFB.

We deny the protest.

As issued, the solicitation asked prospective bidders to submit 
lump-sum prices for furnishing all labor, materials, and equipment 
required to perform various construction services required to complete 
the repair and renovation specified in the statement of work and 
solicitation drawings.  The project was divided into numerous 
sections, including the removal and replacement of doors.  The initial 
specifications and drawings require the contractor to provide 200 new 
sliding closet doors (Door Type 15) in the remodeled bedrooms but did 
not identify the frame type to be used to mount the new doors.  This 
aspect of the project was the subject of a written bidder inquiry in 
which the bidder noted that while the solicitation drawings state at 
Note 10 on Drawing Sheets A2, A3, and A4 that the contractor must 
furnish "[n]ew door, frame, and hardware[ ] [-] [r]efer to door 
schedule," there is no indication on the door schedule (drawing sheet 
A8) or the bid specifications as to the type of frame to be furnished.  
Upon reviewing the drawings and specifications, the agency determined 
that the solicitation was ambiguous as to the type of door frame 
required.  Specifically, the contracting officer noted that a bidder 
reasonably could infer that the opening for the type 15 sliding closet 
doors could be framed in sheetrock or wood rather than the desired 
hollow metal framing since the solicitation package did not identify 
any particular door frame for type 15 doors but did so for the other 
type doors.  The agency also added a requirement for 1" trim.
Thus, the agency issued amendment No. 0002 which stated: 

     "In detail 1/A8/A8 [of drawing 5317914 (A-8)] add the following 
     to Door Type 15 between the words "Doors" and "HW-8":  'including 
     hollow metal frame with 1" x 1" wood trim at the head and 
     jambs.'"

The agency received seven bids, ranging from $2,153,000 to $4,351,000.  
Dyna submitted the apparent low bid of $2,153,838 and Braselton the 
next low of $2,220,000; the government estimate was $1,886,617.[1]  
Upon review, the contracting officer discovered that while Dyna had 
acknowledged amendment No. 0001 it had failed to acknowledge amendment 
No. 0002.  The contracting officer rejected Dyna's bid because the 
agency regarded the amendment as material.   The contract was 
subsequently awarded to Braselton, the next low bidder.  Dyna timely 
protested to the contracting agency; the agency denied the protest, 
and Dyna filed this protest in our Office. 

Dyna alleges that the amendment was immaterial because it did not 
impose any new, substantial obligations on the bidders.  In this 
regard, Dyna asserts that the solicitation as issued required hollow 
metal frames for the type 15 closet doors because paragraph 2.7, 
Section 08110 of the solicitation required the contractor to provide 
"steel frames for doors unless otherwise indicated" and Note 10 of the 
solicitation drawings (Drawing Sheets A2, A3, and A4) was silent as to 
the type of framing required for these doors.  Dyna states that since 
there are no "solid" steel door frames (that is, steel door frames are 
always "hollow"), the steel frames referred to by paragraph 2.7 had to 
be hollow, and concludes that therefore
amendment No. 0002 did not add a new requirement or clarify any 
ambiguity regarding the type of framing to be used, but only added a 
requirement for wood trim around all the closet doors that, according 
to Dyna, had a negligible effect on the cost of frame.  

Without resolving the need for the amendment as it relates to the door 
frames, we think that the amendment was material in any event because 
it added an additional requirement for 1"x1" wood trim for these 200 
doors.  

Generally, a bid that does not include an acknowledgment of a material 
amendment must be rejected, since acceptance of the bid would not 
legally obligate the bidder to meet the government's needs as 
identified in the amendment. Innovative Refrigeration Concepts, 
B-271072, June 12, 1996, 96-1 CPD  para.  277.  An amendment is material 
when it has more than a trivial impact on price, quantity, quality, or 
delivery of the item being procured or would have an impact on the 
relative standing of the bidders.  Federal Acquisition Regulation  sec.  
14.405(d)(2); Moon Constr. Co., B-228378, Dec. 17, 1987, 87-2 CPD  para.  
605.  No precise rule exists to determine whether an amendment is 
material; rather, that determination is based on the facts of each 
case.  The Hackney Group, B-261241, Sept. 5, 1995, 95-2 CPD  para.  100.  

First, the record does not support the protester's view that the price 
impact of the requirement for wood trim is negligible. Although the 
protester has furnished its own estimate for the wood trim requirement 
at slightly more than $1,000, the agency has its own estimate of 
$10,715 for the work and points out that another Navy engineer priced 
the work at $15,000.  The protester asserts that the labor to install 
the wood trim is minimal[2] and that certain prices the government 
used in its estimates are high.  The protester, however, has not shown 
why the Navy estimate of $10,715, which includes a detailed breakdown 
of the work necessary to install the wood trim, does not represent a 
reasonable estimate of the cost of the work.  Under the circumstances 
here, we do not believe, and the protester does not assert, that an 
impact exceeding $10,000 is trivial.  Second, the agency official in 
charge of construction states that the wood trim affects both 
aesthetics and "the quality of the final product."  The protester does 
not rebut this  conclusion.  Since this contract is intended to both 
repair and upgrade sailors' living quarters, we think this requirement 
had more than a trivial impact on the quality of the final product.  
That being so, the requirement is material even if it had little 
effect on bid price.  See, e.g., American Sein-Pro, B-231823, Aug. 31, 
1988, 88-2 CPD  para.  209.  

Accordingly, the protest is denied.

Comptroller General
of the United States

1. The estimated cost for the repair work was listed in the amended 
IFB as between $1 million and $5 million.

2. The protester estimates labor costs of approximately $500 for the 
wood trim on
 200 closet doors.